Decision On The Registration Request Based On The Promissory Contract Of Sale
T.C. JUDICIARY
14th Civil Chamber
Basis: 2008/237
Decision: 2008/976
Date of Decision: 04.02.2008
REGISTRATION REQUEST BASED ON THE SALES PROMISE AGREEMENT – VALIDITY OF THE WAIVER IS NOT DEPENDENT ON THE CONSENT OF THE OTHER PARTY – THE DECISION SHOULD BE REVERSED FOR A DECISION TO BE MADE BY THE COURT ON THE PARTIES’ WAIVER OF THEIR LAWSUITS
SUMMARY: The validity of a waiver does not depend on the consent of the other party. It has its effect with the unilateral declaration of will of the person who makes it. Therefore, the decision of the local court should be reversed in order to make a decision by the court about the waiver of the parties’ lawsuits.
(1086 S. K. art. 91, 95) (YİBK. 11.04.1940 T. 1939/15 E. 1940/70 K.)
Case: At the end of the hearing held upon the petition filed on 01.08.2003 by the attorney for the plaintiffs against the defendant for the registration based on the sales promise agreement, and the petition filed on 17.08.2003 by Tahir Dündar against Hüseyin Karasu and Nurhan Karasu for the cancellation of the sales promise agreement; the judgment dated 17. 04.2007 dated judgment was requested to be examined by the defendant/counterclaimant’s attorney and it was decided to accept the petition of appeal, which was understood to be in due time, and then the file and all the papers in it were examined and considered accordingly:
Decision: The plaintiffs requested the registration of the independent sections they purchased from the defendant based on the sales promise agreement dated August 3, 1993 and numbered 13019, which was made in the form of an arrangement, and with the counterclaim filed, the defendant Tahir Dündar declared that the sales promise agreement relied upon was concerted and requested the cancellation of the agreement and the dismissal of the plaintiffs’ lawsuit, The court has decided to cancel the title deed in the name of the defendant/counterclaimant of the land share determined for the independent section numbered 5 of the immovable property located on block 463, parcel 21, and to register it in the name of the plaintiff/counterclaimants and to dismiss the counterclaim.
The defendant/counterclaimant Tahir Dündar’s attorney appealed the judgment for the reversal of the court decision due to the fact that the parties mutually waived their lawsuits after the judgment and that the judgment on the acceptance of the plaintiffs’ lawsuit and the dismissal of the counterclaim was contrary to the procedure and the law, since the sales promise agreement was canceled.
1- According to the trial, the collected evidence and the entire file content, the other appellate objections of the defendant/counterclaimant were not deemed appropriate and should be rejected.
2- In the examination of the file, it has been observed that the parties waived their lawsuits with their petitions dated 10.09.2007 with the approval of their identity, which they gave separately before the file was sent to the Court of Cassation for appeal review after the court’s judgment was rendered.
It is stated in Article 91 of the Code of Civil Procedure that waiver is the relinquishment of a claim by one of the two parties, and Article 95/1 stipulates that waiver shall produce the legal consequences of a final judgment. It should also be noted that the validity of a waiver does not depend on the consent of the other party. It has its effect with the unilateral declaration of will of the person making it. For this reason, the decision of the local court should be reversed in order for the court to make a decision on the waiver of the parties’ lawsuits. This is also the established practice of the Court of Cassation. (Decision of the Court of Cassation Unification of Jurisprudence dated 11.04.1940 and numbered 70, decisions of the General Assembly of Civil Chambers dated 16.11.1966 and numbered 1438/290 and dated 27.05.1992 and numbered 1992/2-250/364)
Conclusion For the reasons explained in subparagraph 1 above, it was unanimously decided on 04.02.2008 to reject the other appeal objections of the defendant/counterclaimant’s counsel, to VACATE the judgment in accordance with subparagraph 2, and to refund the appeal fee to the depositor upon request.